Legal Ethics PN
Legal Ethics PN
Legal Ethics PN
So as provided for under Rule 9(1), the conviction of a lawyer for a criminal offence involving
dishonesty or moral turpitude makes him prima facie unfit to continue on the Roll of Lawyers.
This is further harnessed in Section 16A of Act 32 which provides that :
(1) The Council may direct the Judicial Secretary to strike off the Roll of Lawyers, without
holding a disciplinary enquiry, the name of a lawyer who is convicted of an offence
involving dishonesty or moral turpitude, and the Judicial Secretary shall comply with the
directive.
(2) The Judicial Secretary shall not strike off the name of a lawyer from the Roll of Lawyers
under subsection (1) unless the period of appeal against the conviction has elapsed
without the lodging of an appeal or the final disposition of the appeal or the appeal is
withdrawn or abandoned.
However, the Disciplinary Committee may , take into consideration the nature of the offence of
which the lawyer was convicted. In particular, if the offence is not of such a character as to make
the person guilty of it unfit to remain an officer of the court and a member of an honourable
profession, then the Disciplinary Committee may make such order as it thinks fit instead of
striking the name of such person off the Roll of Lawyers. (Rule 9(2)).
CONFLICT OF INTEREST
Rule 1(2) provides as follows :
(2) A practising lawyer shall not-
(a) be a managing director or executive chairman in any company or an active partner in
any business,
(b) carry on any other profession or business which conflicts or involves a serious risk of
conflict with his duties as a practising lawyer;
Provided that the General Legal Council may for the avoidance of doubt give a ruling on
an application made to it in writing in any particular case as whether a profession or
business conflicts or involves a serious risk of conflict with the duties of a person as a
practising lawyer.
Three types of conflicts may be recognised. First, conflict between the lawyer’s profession and
other business or profession that he is engaged in (see rule 1(2)). The second type is conflict
between the lawyer’s interest as a lawyer, and the interest of his client(s). The third is the type of
conflict that may exist between two or more clients represented by the lawyer.
Cases on Conflict of interest :
Northern Engineering Co. Ltd v Djokotoe (1980) GLR 332, HC, Taylor J
Facts: Mr. L, who was a practising lawyer , also acted as acting managing director of NEC Ltd.
Representing the company as its lawyer, he filed an action at the High Court against Mr. D for
the payment of certain sums out of the company (NEC Ltd) accounts allegedly without the
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company’s authority. In court, a preliminary objection was raised on the ground that Mr. L,
being a practicing lawyer, could not also be the managing director of NEC Ltd.
Held (2): since by the provisions of section 27 of the Interpretation Act, 1960 (CA 4), “shall”
should be construed as imperative and was thus not permissive or empowering, the provision in
L.I 613, rule 1(2)(a) that a practicing lawyer “shall not be a managing director…in any
company” was very clear and mandatory in its legislative language and effectively debarred L
from acting as the managing director of N.E.C. Ltd.
Per Taylor J as he then was @ p. 337 “it is my considered opinion nad I so hold that, as a
practicing lawyer, Mr. A.A. Luguterah is debarred from acting as managing director of N.E.C.
This is because that is what in effect section 1(2) (a) of L.I 613 provides, and carried to its
logical limits, it can be rendered in another way, namely, that as acting managing director, Mr.
Lugeterah shall not act as a practicing lawyer”.
Marfo v The Republic (1981) GLR 722, HC, Twumasi, J.
Facts: The accused had applied for bail at the District Court Grade 1, Tarkwa and failed. He then
applied for bail pending trial at the High Court, Sekondi. One of the main objections raised by
counsel for the Republic was that, the proceedings were irregular because the accused’s lawyer,
at the time he represented the accused, in the bail application was still an employee of the State
Gold Mining Corporation and consequently, his action breached article. 20(1) (c) of the 1979
Constitution which debared public officers from engaging in any private business, profession or
trade.
Held: The legal practitioner who represented the accused would be clearly guilty of a gross
misconduct , if the assertion that he was at the time he advocated for bail a public officer, was
true. But it was the legal practitioner who by his act, rendered himself liable to disciplinary
sanctions; and consequently , his misconduct ought not to inure to diffuse the jurisdiction of the
High Court. It was certainly not proper for the court to vacate an order granting bail to an
accused person merely on the ground that the lawyer who appeared for him was a public officer
prohibited from engaging in private practise. (contrast this position with the reasoning in Henry’s
case)
Conflict of Interest Between Clients:
Rule 5(10) provides that a lawyer shall at the time of retainer disclose to the client all the
circumstances of his relationship to the parties and his interest in or connection with the
controversy, if any, which might influence the client in selection of counsel. He shall avoid
representing conflicting interests.
OTHER CASES
Ekwan v Ewusie XIX; Botchey v Ewusie XIX (Consolidated) (1980) G.L.R. 171, H.C Osei-
Hwere J
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facts : Some time in 1976, A.A.C., a solicitor was engaged first by the plaintiffs, and later by the
defendant and the Fetteh stool to represent them in a boundary settlement dispute. In 1978,
however, the defendant representing the Fetteh stool, wrote to inform A.A.C. that his services
were no longer required. As a result, the plaintiffs retained the services of A.A.C. to prosecute a
claim he had against the defendant and the Fetteh stool. On discovering that A.A.C. was
representing the plaintiff against him, the defendant brought the present application for an
injunction to restrain A.A.C. from acting as counsel and solicitor for the plaintiffs on the ground
that it was improper for A.A.C. to use facts and information he acquired when acting for him and
the Fetteh stool against him in respect of the same Fetteh lands. The respondent on the other
hand argued that he did not acquire any confidential information or any knowledge of facts
which he could use to the advantage of his client.
Held:
(1) There was no general rule that a solicitor who had acted in a matter for one party should
not in any circumstances subsequently act in the same matter for the opposing party; but
where there was a probability or a danger that the solicitor would disclose to the opposing
party confidential information which he had obtained from his original client while acting
for him, the court would restrain him by injunction from doing so. The court would act
according to the circumstances of the particular case, and would do what it feels to be its
duty as holding the balance between the highest standard of behavior which is required of
its officers and the practical necessities of life.
(2) A court would refuse to restrain a solicitor who had acted in one proceedings from acting
in a subsequent proceeding for the party opposed to his former client if,
i. the solicitor acted in the former cause for both parties
ii. it was not shown that the solicitor was in possession of knowledge or matter
which might give him undue advantage and
iii. the second proceeding did not flow out of or was not connected with the first, as
that that solicitor could not be presumed to be in possession of information
bearing upon the matter in dispute …
Lartey and Lartey v Beany and Another (1987-88) 1 G.L.R 590, HC, Cecilila Koranteng-
Addow J
Held (6) : There was nothing improper about a solicitor going to discuss matters affecting his
clients and himself with a prospective defendant of his clients. In any case on the two occasions
that the defendants’ counsel saw L in custody, i.e. before the originating summons and before L
signed the agreement of sale, L exercised his choice of action independently by consulting a
counsel of his own choice. There was therefore no basis for the allegation that the defendants’
counsel induced L to accept the terms of the settlement. The defendants’ solicitor , a legal
practitioner, was a private person. Although an officer of the court he was not a public officer.
Besides, his conduct was not in breach of any law or rule in the code of conduct and etiquette for
lawyers in the country. Furthermore since his conduct was not fraudulent the part her personally
played in obtaining the two judgments could not be a cause of action and did not derogate from
those judgments.
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Held: The SC dismissed the review application on the ground that the aplciant has faield to
satisfy the court as to the exceptional circumstance whci demands an overturn of their earlier
decision.
On the language used, the SC held that (per Francois and Aikins JJSC):
However emotionally overheated one may be, members of the legal fraternity have a duty to
conform to the time-honoured practice of comporting themselves always with decorum and
dignity. This must be reflected in the language they employ which should be of measured
elegance and sobriety. Judges do make mistakes; there is no doctrine of judicial infallibility but
the errors of judges must be pointed out with judicial logic and sober argument. Having failed in
the appeal itself, there was no need for counsel to use the review to vent their feelings in an
inordinate and impassioned anger upon the learned justices of the court and counsel on the
opposite side. This practice of some counsel to fly into unbridled passion and tantrum at the least
provocation must be strong deprecated.
SHARING OF FEES
Section 5 of the Bar Code provides that a lawyer commits misconduct if he shares or agrees to
share his professional remuneration with any person who is not a duly qualified lawyer.
DEALINGS WITH OTHER LAWYER’S CLIENT
Under rule 9(10), it is a misconduct for a lawyer to attempt to negotiate or compromise the
matter in controversy directly with any party represented by a lawyer. Any such negotiation
should be through the party’s lawyer.
Rules 5(6) and 7 specifically provides:
(6) A lawyer who finds on receiving a brief that another lawyer has previously been retained
shall not accept the brief without -
(a) Communicating in the first instance with the lawyer who first handled it; and
(b) Enquiring whether he has any objection to accepting the brief
Such communication shall be by the latter lawyer to the former one directly, and not through his
clerk.
(7) If the first lawyer does indicate any objection to the brief being taken away from him, the
second one ought, where practicable, to ascertain from the client what are the exact reasons why
the brief has been taken away from the first lawyer; and unless a satisfactory explanation is
given, shall refuse or return the brief.
The Bar Code also proscribes unauthorized dealings with other lawyers’ clients under Section
11.
PROCEEDING AGAISNT ANOTHER LAWYER:
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A lawyer has a duty to maintain the honour and integrity of the profession and is duty –bound as
a consequence, to expose without fear or favour, at the appropriate forum (“before the proper
Tribunal”) any fraudulent, corrupt or dishonest act by any member of the profession (rule
9(11)). The said rule enacts as follows :
It is the duty of a lawyer to maintain the honour and integrity of his profession, and to
expose without fear or favour before the proper Tribunal unprofessional or dishonest
conduct by any member of the profession, and to accept without hesitation a retainer
against any member of the profession who is alleged to have wronged his client.
See also Rule 2(5)
Section 13 of the Bar Code also provides that “ A lawyer commits misconduct if he refuses
without good reason to accept instructions to take proceedings against another lawyer.”
While a lawyer is duty bound to expose the unprofessional conduct of his or her colleagues, he
must also accept a retainer against any such colleague who is alleged to have wronged his client.
cases in which lawyers were retained to mount action against colleague lawyers include :
Fodwoo v Law Chambers and Co (1965) GLR 363, SC ( Negligence of a lawyer)
Agbemashior and Others v State Insurance Corporation and Others (1972) 2 GLR 65, HC
(Negligence of a lawyer).
“The practice whereby some lawyers signdocuments e.g. indentures not prepared by
themselves or made under their supervision poses serious dangers for the profession, especially
where such documents are prepared by non-lawyers for a fee. By signing such documents, the
lawyer voiches that the document was prepared by him and that he used the best of his
professional skills in executing the work. If it should turn out that the work has been negligently
done resulting in loss to client, the laywer risks being sued for damages”.
A lawyer who signs a legal document not prepared by him or under his direction faces a “catch
22” situation when the document turns out to have been prepared negligently, or even
fraudulently. If the lawyer accepts that he prepared the document, he is liable to e sued for
negligence and suffer damages. In the case of Fodwoo v Law Chambers and Co, (1965) GLR
363, SC, lawyers in a partnership were successfully sued for the negligent handling of a brief,
and damages were awarded against them. The court in that case held, (holding 1)
“A laywer can be sued is in negligence on his conduct of a case and the negligence of
one partner of a firm of solicitors is the negligence of the wohole firm for which the latter can be
sued.”
ADVERTISEMENT AND TOUTING PUBLICLY
For the sake of the public good, the Rules make prohibition against advertising and touting. It is
therefore a misconduct to apply directly or indirectly for, or seek instructions for professional
business or engage in advertisement or permit touting in any form with the purpose of unfairly
attracting business (rules 2(1), (3)(4)). A reading of the rules suggest that, while it is permissible
for the lawyer in the course of his work to advertise himself as a collateral effect of conducting
his profession, he is forbidden from engaging in acts solely aimed at personal advertisement, or
calculated to achieve the same purpose. An example is when a lawyer is engaged in a radio
program. Eventhough the lawyer, by engaging in the programme is advertising himself, his
primary aim is not such advertisement. The advertisement is a consequence and collateral to the
radio engagement. This is permissible. On the other hand, if the lawyer goes on the programme
and bears out his full identity with his address and professes special skills with the aim of
attracting business unfairly, then he will be in breach of the rules.
As a measure to ward off non-lawyers and lawyers without valid licenses form practising , only
lawyers on the Roll and holding a valid license to practice can have their names printed on the
name plate of the chambers, or on the professional stationary of the chambers (rule 3). Juniors
serving their pupilage may not have their names on the name plates and professional stationary.
See also section 6 of the Code of Ethics of the GBA
DUTY TO THE PUBLIC
The lawyer’s duty to the public shall be discussed in respect of stirring up litigation; taking
instructions from unauthorized persons; his duty when a public prosecutor and the duty to take
cases assigned to him
STIRRING UP LITIGATION
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Rule 2(5) provides that a lawyer shall not volunteer advice to bring a lawsuit except in peculiar
situations where as a result of blood ties, or as a result of trust reposed in him, it behoves on him
to do so. He is forbidden from employing agents or other persons (litigation contractors) who
will instigate litigation for him for reward. He should not reward police, prison, hospital or social
welfare officers etc who prevail on people under their care or influence such as criminals, the
sick , ignorant or injured to send their cases to the lawyer under the pretence of assisting those
people.
Rule 2(5) enacts as follows :
A lawyer shall not volunteer advice to bring a lawsuit except in the exceptional cases
where ties of blood relationship or trust make it his duty to do so. Accordingly, a
practising lawyer shall not employ agents or runners for the purposes of instigating
litigation or pay or reward directly or indirectly those who bring or influence the bringing
of such case to his chambers or remunerate Policemen, Court or Prison officials, hospital
attaches or others who may succeed under the guise of giving disinterested friendly
advice in influencing the criminal, the sick and the injured, the ignorant or others to seek
a lawyer’s professional services. Every lawyer having knowledge of any such practices
on the part of another lawyer owes a duty to the public and to the profession immediately
to inform thereof to the end that the offender may be disbarred or otherwise dealt with by
the appropriate authority.
A lawyer stirs up litigation if he purposely instigates people to litigate, instigates them to seek
advice to enable them litigate, assist them either through advice or the provision of resources to
litigate or encourages people to bring their cases to him for litigation, or in any other maner
facilitate litgation not in a professional manner. The only excpetion is wehre heh as been
properly instructed to mount litigation, or where by reason fo blood relationship or ties, he was
bound to proffer advice to bring up litigation.
TAKING INSTRUCTIONS FROM UNAUTHORISED PERSONS
Section 18 of the GBA Code of Conduct provides as follows : A lawyer commits misconduct if
he accepts instructions to take proceedings except-
(a) at the express request of the party concerned; or
(b) as agent for or at the request of another lawyer representing the party; or
(c) at the request of some other legally authorized person
Rule 8 deals with improper relationships and contacts. Taking instructions from touts or police,
prison, welfare officers or other “litigation contractors” goes against the tenets of the
profession. Proper instructions must come from the persons involved in an issue; whether
natural or artificial, or their proper representatives, or close friends or associates having the
apparent mandate to act on behalf of the actual persons affected.
In Agbemashior v State Insurance Corporatoin (1972) 2 GLR 65, it was held that a lawyer who
had paid insurance claims to the agent of the injured persons; which agent refused to forward the
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money to them, was indemnified because he took instructions from and made the payment to a
properly instructed agent.
DUTY OF A LAWYER AS A PUBLIC PROSECUTOR
Section 25 of the of the GBA Code provides that :
It is the primary duty of a lawyer, when engaged as a public prosecutor, not to seek conviction
but to ensure that justice is done; any such lawyer commits misconduct if-
(a) without reasonable excuse he withholds any facts , documents or relevant and admissible
evidence tending to prove either the guilt or the innocence of the accused; or
(b) he knowingly harasses or intimidates a witness or prospective witness for the defence; or
(c) he aids, abets or takes no reasonable step to discourage officers subject to his control
from harassing; or intimating a witness or prospective witness or the defence and
prosecution.
HOSTILE PROSECUTOR
Atuahene v Commissioner of Police (1963) 1 GLR 448, HC Akainyah, J
Held (3) It is contrary to the principles of justice and to established rules of practice for a
prosecuting counsel to exhibit open hostility towards the defence. A prosecuting counsel is a
representative of the state and a minister of justice. It is not his function to obtain conviction
by all means but simply to lay before the court the facts which compose his acse and to make
them perfectly intelligible.”
His Lordhsip Akainyah, J (as he then was), at page 545 of the report , cited extensively, Kenny’s
Outlines of Criminal Law, (1952 ed) pp. 504,505, para . 749 as follows :
“A prosecuting counsel stands in a postion quite different from that of an advoicate who
represents the person accused or represents a plaintiff or defendant in a civil litgation. For this
latter advoicate has a private duty-that of doing everything that he honorably can to protect the
interests of his client. He is entitled to fight for a verdict! But the crown counsel is a
representative of the state, ‘a minister of justice’; his function is to assist the ury in arriving at
the truth. He must not urge any argument that does not carry weight in his own mind , or try
to shut out any legal evidence that would be important to the interests of the person accused. It
is not his duty to obtain a conviction by al means; but simply to lay before the ury the whole of
the facts which compose his case, and to make these perfectly intelligence, and to see that the
ury are instructed with regard to the law and are able to apply the law to the facts’. ‘It cannot
be too often made plain that the business of counsel for het crown is fairly and impartially to
exhibit all the facts to the ury. The crown ahs no interest in procuring a conviction. Its only
interest is that the truth should be known, and that justice is should be done.’ Thus, it has been
declared that witnesses essential to the unfolrding of the narratives , on which the prosecution is
abased, msut, of course , be called by the prosecution, whether in the result the effect of their
testimony is for or against the case for the prosecution. But there is no rule or principle of
practice that the prosecution must call witnesses irrespective of consdierations of number and
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reliability, or that the prosecution should discharge the functions both of prosecution and
defense. IT is regarded as proper, and enough, forh te prosecution to acquaint the dfense with
any relevant information which has come into their hands so that the defense may have the
opportunity to use it if they desire, and so that no unfairness should be visted upon a
defendant.”
The above postion of the English law, as the Judge opined (at page 454) “…applies, mutatis
mutandis, to the State Attorney in this country”
Cousel who advised his client in respect of a particular case or charge cannot also prosecute the
same case if he becomes a state attorney, and, is placed in the conduct of htat same case. Doing
so will amount to conflict of interest.
Afful v The Republic (1975) 2 GLR 69 @ 81, HC Taylor, J (as he then was)
“If counsel while a private practitioner advised his client who had been accused of a crime and
following his appointment as a state attorney he handed the defense of the accused to another
lawyer, then in these circumstances , if he were to prosecute the same case there would obviously
be conflict f interest having regard to his previous role.”
DUTY TO TAKE CASES ASSIGNED
Rule 5(1) : lawyer in practice is bound to accept any briefs in the Court which he professes to
practise at a proper professional fee depending on the length and difficulty of the case. Special
circumstances may justify his refusal at his discretion to accept a particular brief
In the language of section 26 of the Code, “It is the duty of a lawyer to take upon himself without
hesitation and if need be without fee or reward, the cause of any man assigned to him by the
court, and to use his best efforts on behalf of the person for whom he has been so assigned as
counsel.”
The duty of lawyers to take up assigned cases by the court to litigants without the wherewithal is
further given a boost under section 114 of the Courts Act, (Act 459) which provides that :
1. Where it is considered that it is desirable in the interest of justice that a party should have
legal service, and he does not have the financial ability to obtain the services of a lawyer,
the Supreme Court, the Court of Appeal, the High Court or Regional Tribunal may assign
a lawyer by way of legal aid to the said party in need.
2. A Circuit Court or Distrit Court may also assign a lawyer to a party in need in
proceedigns before it but with the prior approval of the Chief Justice
3. A laywer assigned to a party under legal aid shall be paid out of the consolidated fund
such fees as has been fixed by the Minister for Justice in consultation with the Chief
Justice.
Note that Rule 5(1) provides an exception , thus the right to refuse such briefs “…special
circumstances may justify his refusal at his discretion to accept a particular brief.”
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(2) Every lawyer shall at all times keep properly written up such books and accounts as may
be necessary –
(a) to show all his dealings with
(i) clients’ money held, received or paid by them; and
(ii) any other moneys dealt with by him through a client account; and
(iii) to distinguish such moneys held, received or paid by him on account of each
separate client and to distinguish such moneys from others moneys held,
received or paid by him on any other account
(3) all dealings referred to in sub-rule (2) (a) of this rule shall be recorded in
(i) a clients’ cash book , or a client’s column on the credit side or debit side (as may
be appropriate) of a cash book; and
(ii) a clients’ ledger, or a clients’ column on the credit side or the debit side (as may
be appropriate) of a ledge ;
And no other dealings shall be recorded in such clients’ cash book and ledger, or
as the case may be, in such clients’ column; and
(b) All dealings of the lawyer relating to his practice as such lawyer other than those
referred to in sub-rule (2) (a) of this rule shall be recorded (as may be appropriate) in
such other cash book and and ledger (if any)or such other columns of a cash book and
ledger (if any ) as the lawyer may choose to maintain.
(4) Every lawyer shall preserve for at least six years from the date of the last entry therein al
books, accounts and records kept by him under this rule.
(5) Nothing in these rules shall deprive a lawyer of any recourse or right, whether by way of
lien, set-off, counter-claim, charge or otherwise, against moneys standing to the credit of
a client account
(6) In this rule each of the expressions “books”, “ledger”, and “record” shall be deemed to
include a loose-leaf book and such cards or other permanent documents as are necessary
for the operation of a mechanical system of book keeping.
Laweyrs stand in a fiduciary relationship with their clients. As a result, they have a boudnig
duty to faithfully account to their clients in respect of all moneys received by them on behalf
of their clients. See Vambaris v Altuna (1973) 2 GLR 41
In Boardman v Phibbs (1967) 2 AC 46, at page 105, HL., Lord Hodson, stated :
The proposition of law involved in this case is that no person standing in a fidicuary
position , when a demand is made upon him by the person to whom he standsi n the
fidicuary relationship to account for profits acquiresd by him by reason of the opportunity
and the knowledge, or either , resulting from it, is entitled to defeat the cliam upon any
ground save that eh made profits with the knowledge and assent of the other person…It is
obviously of imoprtnace to maintin the proposition in all cases and to do nothing to
whttle away its scope or the absolute responsibility which it imposes”.
See Ayarna v Agyeman(1976)1 GlR 306, CA
FEES AND CHARGES (See also order 72, of CI 47)
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A lawyer is entitled to charge reasonable fees for his services, but he should avoid either
overcharging or undercharging for his services (rule 9(9).
Section 31 of the Code also provides that : A lawyer commits misconduct if he charges against
his client fees or expenses which are of such excessive amount as to introduce an element of
fraud, dishonesty or sharp practice
RECOVERY OF FEES ;
Supra
BENEFITS FROM THIRD PARTIES
Section 32 of the Code provides that : A lawyer commits misconduct if he accepts from a third
party in respect of business done for a client any commission or financial payment without prior
disclosure to his client and without his consent. See also Rule 8
MISREPRESENTATION
A Lawyer must uphold a high standard of integrity of himself and the profession (rule 2(2)). He
is also obliged to act with utmost honesty and frangkness, and avoid fraudulent acts at all tiems
and at all costs (rule 9(7) and (8)). Threofre, it is misconduct for a lawyer to make false or untrue
representations to his clisent; or for dishonest and mproerp motive, conceal material facts from
his client.
See also section 35 of the Code.
NEGLIGENCE
The nature and contours of the lawyer’s duty is set out classically in Halsbury’s Laws of England
(3rd Edition) Vol 36 p 99, paragraph 135, where it is stated “a solicitor hold himself out to his
clients as possessing skill, knowledge and learning for the purposes of properly conducting all
business that he undertakes, whether contentious or non contentionious. If, therefore he causes
loss or damage to his client owning to want of such care as eh ought to exercise, he is guilty of
negligence giving rise to an action for daamges by his client.”
Section 2(c) of the Legal Profession Act, 1960 (Act 32) provides :
“A person whose name is entered on the Roll kept under section 6 is subject, when acting
as a lawyer, to the liabilities that attach by law to a solicitor..”
See Fodwoo v Law Chambers and Co (1965) GLR 363, SC. at page 369, the Court said :
….the question which properly fell for determination before the learned trial judge and
before us is: Did the firm qua firm use reasonable care or skill in conducting the case
which the plaintiff retained them to prosecute against the Northern Assurance Co, Ltd? If
they did not with the result that the plaintiff lost that action, then they wwould be liable ,
as a matter of law, to the platiniff, by way of damages , such sum as might reasonably be
supposed to have been in the contemplation of the parties at athe tiem the contract of
retainer was concluded…”
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In NOcton v Ashburton (1914) AC 932 @ page 956, H.L, Viscount Haldane LC , pronounced :
My Lords, the solicitor contracts with his client to be skillful and careful. For failure to
perform his obligation he may be made liable at law in contract or even in tort, for
negligence in breach of a duty imposed on him.
Goody v Baring (1965) 1 WLR 448 @ page 453, per Danckwerts, J
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“The stands on which a solicitor’s liablity for negligence depends has recently been
described by Harman J., and his remarks have been approved by the Court of Appeal in
Simmons v Penning –ton Son (a firm) (1955) 1 WLR 183, 188). In that case Harman J., as
quoted by Hodson L.J. said,
I do not think I need deal at any great length with the question of a solicitor’s liablity for
negligence. It is the same as anybody else’s liability; having regard to the degree of skill
held out to the public by solicitors, does the conduct of the solicitor fall short of the
standard whci the public has been led to expect of the solicitor”
In Agbemashior v Stte Insruance , Abban J (as he then was) where , relying on Goody v Barign
supra held that the negligence of the solicitor is the same as that of any member of the public.
PRIVILEGED COMMUNICATION AND CONFIDENTIALITY
Rule 5(3) provdies that , a lawyer stands in a confidential position with his clisent and his is duty
–bound not to divulge any confidential information that came to him from the client in his
professional capacity. The duty continues even after the relationship of lawyer-client ceases to
exist.
Rule 5(3): Where a lawyer withdraws form a case and returns the client’s brief, it is his
duty to hand it back to the client form whom he received it. A lawyer who accepts a brief
is in a confidential position, and he shall not communicate to any other person the
information which has been confided to him as such lawyer; and he shall not use either
such information ro his position as a lawyer to his client’s detriment. The duties here
stated continue after the reltiosnhip of laweyr and client has ceased.
Section 38 of the Code also provides : A laywer commits misconduct if he discloses or permits
to be disclosed without his client’s consent any confidential communication made to him or his
firm by or on behalf of his client and whether or not he has ceased to act for the client, unless
required to make such disclosure by law or by the lawful order of any court.
As also provided for in Rule 5(4), the papers in a brief deliverd to a laweyr are the property of
the client, and the lawyer has no right to lend them to any person without the consent of the
client. See also sections (87-110) of NRCD 323.
Republic v Armah; Ex Parte Amugi II and others (1993-94)
Held (2) : A client had a privilege under section 102(1) of the Evidence Decree, 1975 (NRCD
323) to refuse to disclose and to prevent any other person form disclosing information obtained
by his lawyer when rendering proefessioanl legal services sought by his client. Since JR had
acted for the whole Korle we family in respsect of the land in dispute between sections of the
family in respect of the land in dispute between sections of the family in the instant case and
since the contempt proceedigns had arisen out of the dispute between the two sections of the
family, the fear of the respondent is that he might use confidential information given him by the
united family in the defense of those facing contempt proceedigns might be real. Accordingly,
the objection of the resopndents was reasaonble.
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The application under 75(6)(3) shall be supported by motion and supported by an affidavit. See
MIchelleti Polla Ltd v Crabbe (1976) 1GLR 108, CA; Kojo Nsafoah and Others v Dr. Kwame
Appiah and Others (2008) GMJ 52, SC; Jones Buckle and Others (1977) 2 GLR 145;
Worldwide Shipping and Agencies (Gh) Ltd v Darko (2001-2) 2 GLR 488, CA
PROPRIETARY RIGHT TO THE BRIEF
See Rule 5(3) and (4)
Eventhough the lawyer has right of lien, set-off, counter-claim, charge or otherwise, that right
can be exercised only against money’s standing to the credit of the client in the client account
(rule 6(5)).
The proper cause is for the lawyer to sue for unpaid fees under Section 30. The lawyer may also
leverage for his due and unpaid fees by objecting to the taking up of the brief by another lawyer
(rule 5(6)).
BRIEF WITH LIMITED AUTHORITY
An implied term of the lawyer’s retainer is that, he is free to present the case of the client the best
way he considers appropriate. Accordingly, rule 5(5) provides :
A lawyer shall not accept a brief limiting his ordinary authority, or take a subordinate
position in the conduct of a case or share such conduct with the client even if the litigant
is himself a lawyer; and he shall not accept a brief on the condition that his discretion as
to offering no evidence is faltered.
See also section 41 of the Code
where the client insists on allowing only limited authority to the lawyer in a case which is
proceeding in court, the lawyer msut seek the courts approval and withdraw from the case. A
solicitor does not need a power of attorney from his client to enable him issue a writ on behalf of
the client. Fink v Coello (1999-2000) 2 GLR 166, HC (holding 1)
SETTLEMENT OF DISPUTES
Section 43 of the Bar Code provides as follows :
1. It is the duty of a lawyer to advise his client to avoid or to terminate litigation
whenever the controversy will admit of fair settlement.
2. A lawyer commits misconduct if –
(a) he fails to communicate to his client the terms and effect of any settlement
offered to his client; or
(b) he declines to take an available opportunity in the client’s interest to reach a
solution by a fair settlement out of court instead of engaging in legal proceedings
A lawyer is therefore duty bound to advise his client when the need be to bring a settlemtn to the
litigation. This is because, as held by the Supreme court in Yungdong Industries Ltd v Roro
Services and Others (2005-6) SCGLR 816 :
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…it would do legal practitioner a great deal of good if, counsel would, where warranted
by the occasion, accept that there was a limit to effective litigation.
The implied authority of counsel to to compromise or settle cases on behalf of their
clients are reflected in several cases :
Abakah v Attah-hagan (1972) 1 GLR 438 at 441 , CA
Counsel who appears in court on behalf of his client is the spokesman for the
client but, counsel’s authority to act for the client is not limited to the exercise of
his power of argument and eloquence …counsel is presumed to have the authority
of his client to settle and compromise an action, and if an action is setteled in
court in the presencde of the lient, his conent will be inferred and he will be
precluded from saying that he did nto understand the proceedings. If counsel
acting within the limits of his apparent authority enters into an agreement with
counsel forh et opposing party asto the cause, the agreement is binding upon his
client.”
see pages 65 and 69 adb add up…
DUTY TO THE COURT
LAWYER AS A WITNESS OR SURETY
Rule 7(2) provides : “A lawyer shall not appear as witness for his own client except as to merely
formal matters such as the attestation or custody of an instrument, or the like, or when it is
essential to het ends of ustice. If he is a necessary witness with respect to other matters, the
conduct of the case should be entrusted to another lawyer”.
In Yankah v Administrator –General (1971) 2 GLR , a laweyr who prepared a will testified as
a witness for a purely formal purpose of explaining what happened to be a cancellation on the
face of the codicil. The Court of Appeal did not disapprove of that. At p. 189 of the report, the
CA stated “But for reason which is not quite clear, Mr. Casely-Hayford went into the witness
box and explained the reason for what appears to be a cancellation on the face of the codicil. The
learned judge feeling satisfied, granted probate of the will and codicil.”
In R v Secretry of State of India (`1941) 1 KB 175 , it was held
“…a barrister may be briefed as counsel in a case, or he may be a witness in a case. He should
not act as counsel and witness in the same case.”
A lawyer should not wear robes in the witness box
Republic v Court of Appeal; Ex-parte Amponsah (1993-94) 2 GLR 453, SC
Held (1) A barrister who took his seat at the bar became one of the constituent panoply of
officers of the court irrespective of whether eh was in court to represent his client. Hence the
applicant who had gone to court to “Prosecute” his own personal appeal should not have taken
his seat at the bar in the first place, much less appeared in court robbed.
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Rule 5(8) : A lawyer is, in all his practice, but especiialy with regard to settling and signing of pleadings,
under responsibilities to the court as well as to his client. He shall not put into a pleading any allegation
which is not supported by the facts whci are laid before him by his client…In particular , wehre a lawyer
is instructed to allege fraud, he shall not subscribe to such an allegation without having before him clear
isntructions that the client does wish to allege fraud and will support the allegation in the witness-box.
In addition, the lawyer must have before him material which, as it stands, establishes a prima facie case
of fraud. If the material beore him is not sufficient in his view to warrant the allegation, he shall advivse
his client that this is his view and that he cannot put his signature to the pleadings if it is to ontain that
charge.
Rule 5(9) : A lawyer shall nto offer evidence which he knows the court should not admit…”
Rule 9(3) The failure on the part of any laweyr to comply with an order of the court is a professaionl
misconduct except where such non-compliance was in connection with a court order made gasitn a
lawyer in a purely personal capacity completely unconnected with his practice
Rule 9(12) : No client is entitled to receive and no laywer shall render any service or advice ivnovlign
disloyalty to the state or disrespect for the judicial officer or the occurption of any persons exercising a
public or private trust or deception or betrayal of the public.
A lawyer who neither attends in court himself nor makes arrangements for a resposnbile
member of his firm or staff or agent or some other lawyer to be present througouth in court
proceedings in which he or his firm is acting is guilty of a breach of duty to the court, his client
and his profession.
Section 53 of the Code also provides that : A lawyer commits misconduct if without reasonable excuse
he neither attends in court himself nor arranges for a responsible member ofh is firm or staff or agent
or some other lawyer to be present thougout in court proceedings in which he or his firm is acting.
A very good case on the need to attend court regularly is Mensah v Mensah (1992-93) GBR 1432, CA
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Held (1)
It was a principle too elementary to require argument that every court was important. Counsel’s
arguments based on the alleged exigencies at the bar were misconceived. It was not uncommon
that counsel’s case might be fixed simultaneously in more than one count; but that is the more
reson why lawyers at the bar ought to work in teams , in sets of chambers or with juniors. If a
lawyer decided to embark on sole practice and was confronted with the situation where he had
to appear in two different courts at the same tiem, eh had himself to blame; such practice could
not inure to his advantage. For there was no rule of law or practice in our courts to the effect
that a case ought to be adjourned because counsel was in another court, as in this case, in a
lower count. Indeed, it was incompetent for a laweyr to organize his affairns in such manner as
would require his presence in several courts at the same time. No court will countenance suhc
situation unless the parties or their counsel and the court had so agreed. Courtesy demanded
that a lawyer informs opposing counsel or party and the courto f his inability to attend court and
common sense dictated that the prudence course for a lawyer having to apper in a lower and
superior court simultaneously. Tehat preference ought to be given to the superior court did not
mean that a lower court was unimportant. It was indeed an aberration of al awyer’s sense of
priority for him, in such situation, to appear in the lower court.”
Failure to attend court may attract costs. See Order 74 r 8, 9 and 10. : See also Skyway Travel Ltd v
Ghana Commercial Bank (2005-66) SCGLR 724
COMPETENCE
See sections 6 and 13(3) of Act 32. Ignorance of counsel on basic areas of the law cannot be tolerated.
See the cases at 79 and 80